Natural Resources Access Regulator v Lidokew Pty Ltd (No 2) [2023] NSWLEC 131

Land and Environment Court New South Wales

Medium Neutral Citation: Natural Resources Access Regulator v Lidokew Pty Ltd (No 2) [2023] NSWLEC 131 Hearing dates: 4, 5, 6, 7, 11, 12, 13, 14, 17, 18 October 2022 Date of orders: 28 November 2023 Decision date: 28 November 2023 Jurisdiction: Class 5 Before: Duggan J Decision: See paragraphs 12 and 13 Catchwords: ENVIRONMENTAL OFFENCES – no case to answer application – whether prosecutor adduced evidence capable of supporting verdict of guilty – application dismissed Cases Cited: Doney v R (1990) 171 CLR 207 Peacock v The King (1911) 13 CLR 619 Category: Principal judgment Parties: Natural Resources Access Regulator (Prosecutor) Lidokew Pty Ltd (Defendant) Representation: Counsel: H El-Hage and A Brown (Prosecutor) C R Ireland (Defendant)

Solicitors: Crown Solicitor's Office (Prosecutor) Bell & Johnson Solicitors (Defendant) File Number(s): 2020/88368, 2020/88369, 2020/88370, 2020/187127, 2021/181935, 2021/181936 Publication restriction: No

JUDGMENT

No case to answer submission 1. The Prosecutor closed its case in each of the six charges on 12 October 2022. Upon the close of the Prosecution case the Defendant made an application that it had no case to answer in each of the alternative charges. After hearing the Defendant's application, I dismissed the application and advised that reasons would be published with the judgment in the substantive proceedings. These are my reasons. 2. The details of the evidence adduced by the Prosecutor will be set out in the substantive reasons for decision and I adopt those details here to avoid repetition. 3. The no case to answer submission requires a determination of a question of law as to whether the Prosecutor has adduced evidence which, if taken at its highest, is capable of supporting a verdict of guilt on some or all of the charges before me. 4. In making such a determination it is necessary for the Prosecution evidence to be taken at its highest, it is not appropriate for the evidence to be weighed, determined if it is capable of inference of guilt, or whether is excludes all hypotheses consistent with innocence: Peacock v The King (1911) 13 CLR 619 at 651-652. Rather, as was stated in Doney v R (1990) 171 CLR 207 at 214-215: …, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.